New South Wales Court of Criminal Appeal CITATION : Regina v MORAN [1999] NSWCCA 169 FILE NUMBER(S) : CCA 60360/98 HEARING DATE(S) : 28/06/99 JUDGMENT DATE : 28 June 1999 PARTIES : Regina v John Thomas MORAN JUDGMENT OF : Grove J at 45; Abadee J at 1; Barr J at 46 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 97/11/0943 LOWER COURT JUDICIAL OFFICER : Graham DCJ COUNSEL : D. N. Howard - Crown J. Nicholson QC - Appellant SOLICITORS : C. K. Smith - Crown John Byrnes & Associates CATCHWORDS : ACTS CITED : Crimes Act Criminal Appeal Act Regina v Reeves (1992) 29 NSWLR 109 CASES CITED: M v The Queen (1994) 181 CLR 487 Jones v The Queen (1997 72 ALJR 78 DECISION : Appeal against conviction is dismissed IN THE COURT OF CRIMINAL APPEAL 60360/98 GROVE J ABADEE J BARR J MONDAY 28 June 1999 REGINA v John Thomas MORAN JUDGMENT 1 ABADEE J: The appellant was indicted before Judge Graham by a jury on 7 April 1998 charged with the general offence of attempting to pervert the course of justice. That offence under s 319 of the Crimes Act, on conviction carries a maximum penalty of penal servitude for fourteen years. 2 The appellant pleaded not guilty. On 9 April 1998 the jury returned a verdict of guilty in respect of the charge. On 5 June 1998 the appellant was sentenced to penal servitude for a fixed term of two years to be served cumulatively upon a custodial sentence of two years periodic detention imposed at the Sydney District Court on 6 September 1996. 3 The appellant appeals the conviction. He no longer seeks leave to appeal the sentence. The Crown case may be summarised as follows. On 2 March 1994 two financial investigating officers from the National Crime Authority and three other members of the police force attended the premises of the appellant to execute a search warrant. The search took place over a period of several hours. A large amount of property was removed from the appellant's home and garage. During the course of the search of the garage the Crown alleged that a new two-tone Daiwa golf bag wrapped in plastic was located in the ceiling space or rafters of the garage. Two officers of the NCA gave evidence that the golf bag was not concealed and was easily observable upon entering the garage. 4 The question has arisen before us as to whether the golf bag was a new golf bag or not. His Honour clearly gave directions to the jury in relation to the bag and the jury were in a position to determine whether or not it was a new bag or a second-handbag. Not only were directions given but the jury had the benefit of considering a photograph and the oral evidence adduced, in terms of describing the bag on the day of the search. 5 On 2 March 1994, the day of the search the appellant was charged with an offence of goods in custody. 6 On the evidence given by each of the two officers at the trial, one of them being Investigating Officer Newton, it appears that Newton asked the appellant whether the bag belonged to him. The appellant indicated it was his. He said he had purchased it. He was asked whether he had a receipt and he replied, "No, you'd better take it too". 7 Newton gave evidence that the search for receipts by the police did not uncover any receipt for the golf bag. 8 On 20 February 1996 the appellant attended the premises of the NCA with his solicitor. He handed to Investigator Newton some receipts, one of which was dated 14 September 1993 under the letterhead Beaver Creek golf Shop. The receipt purported to relate to the sale of a Daiwa golf bag. 9 The meeting of 20 February 1996 took place after an earlier meeting between Newton and the appellant on 16 February 1996, at which time Newton invited the appellant to bring to him any receipts which he would attempt then to verify. 10 Returning to the meeting of 20 February 1996 it is important to observe that when the appellant handed over the receipt, he did not volunteer information as to how he came by the receipt nor did Newton question him about the matter at the time. 11 Newton gave evidence that after he was handed the receipt he attempted to verify it with the former owners Mr and Mrs Wilkins of the Beaver Creek Golf Shop, their accountants and the receivers of the business who had been appointed receivers in March of 1994. The business had been established in July of 1993 by Mr and Mrs Wilkins and one Mr Hassan and was operated until it went into receivership by those persons and three sales staff. Newton's evidence was that the original receipt book kept by Mr and Mrs Wilkins was never recovered. 12 Mr and Mrs Wilkins also gave evidence that the receipts issued to customers were taken from small receipt books typically purchased at newsagents. They had a docket number and date and were stamped with a "Beaver Creek" stamp. The receipt produced by the appellant, tendered and marked Exhibit B in the proceedings was not recognised as a receipt which was issued by Mr and Mrs Wilkins. The signature on the receipt similarly was not identified by the Wilkins, either or both of them. Newton was recalled and further cross-examined about the writing on the receipt. He said that the handwriting which appeared on the receipt could not be identified. 13 Colin Wilkins gave evidence that the Daiwa golf equipment was not stocked at the shop. He accepted in cross-examination that the shop did sell second hand stock and traded stock, and that it would be difficult for him to remember every golf bag that came through the shop. A Mr Freeman, National Sales Manager of Daiwa, gave evidence the company did not sell Daiwa products to the Beaver Creek Golf Shop, but conceded the supply could have occurred from inter-company transaction between retailers. 14 Rosalie Price from Snap Printing gave evidence about selling printed stationery, in particular, business cards and receipt books to a Roger Hassan for the Beaver Creek Golf Shop. The first sales receipt was dated 23 May 1994. Price identified the receipt (Exhibit B), by its number sequence, as coming from a batch of receipts which went in for printing on 25 July 1994. The fact that the receipts in the form presented by the appellant, Exhibit B, was not in existence as at 14 September 1993 was also supported by evidence from Mrs Price who said that the auditor printed receipts were received by Mr Hassan. She said first printed receipts were for him on 23 May 1994. There was evidence at the trial that the appellant knew or had met Mr Hassan who was the very person who had actually ordered the receipts to be printed by Mrs Price. 15 On 2 March 1996 the appellant was spoken to by the police in relation to the Daiwa golf bag and he was subsequently charged with the offence that he went to trial on 27 April 1997. 16 The appellant's case may be summarised as follows. The appellant gave evidence and was cross-examined. He denied the allegations and it was his case that the receipt relating to the Daiwa golf bag was genuine and related to a genuine purchase by him on 14 September 1993 being the date of the invoice. 17 He gave evidence that he played golf regularly and that he had purchased the Daiwa golf bag from the Beaver Creek Golf Shop with the intention of giving it to his son and with the intention of trying to persuade his son to play golf and that that attempt to persuade his son was unsuccessful. 18 The appellant gave evidence that he normally purchased golf equipment at a place called Sharpies near Central Station but that the Daiwa golf bag had been purchased as a single item during an impromptu visit after leaving the Pier Hotel that afternoon. He said that upon ascertaining his son's lack of interest in the game of golf said he had stored the golf bag in the garage. He denied that the only piece of golfing equipment found during the search was the Daiwa golf bag. 19 In respect of the conversation of 2 March 1994 he gave evidence that he had told investigators he had purchased the bag. He accepted that he had been asked whether he had a receipt for such and that his answer has been, as I have already indicated, "No, you'd better take it too". He gave an explanation for saying this because he was sick of saying that he had not got the receipt. 20 In cross-examination he said that he had misplaced the original receipt, which he described as "an ordinary looking receipt form". He gave evidence that on 16 February 1996 he was approached by the informant to produce any receipts and that they would be checked out. He said on 20 February 1996 he produced the receipt, Exhibit B, to the informant in relation to the purchase of the golf bag, delaying the production of that receipt on legal advice. His evidence was that he had acquired the receipt from a sales assistant at the Beaver Creek Golf Shop in September 1994 after having given the sales assistant an explanation he had purchased the golf bag about twelve months before in September 1993 and that he required a receipt for the purchase. 21 He said that the sales assistant left the counter and returned five minutes later with a receipt dated 14 September 1993 which refreshed his memory as to the date of the purchase. 22 The appellant, against the background of this factual situation, advances a number of grounds of appeal. Ground 1 His Honour gave directions which were misleading and confusing in relation to the onus of proof. 23 In the context of explaining to the jury the legitimate intention of the appellant in producing the receipt as contended for by the defence his Honour gave an explanation of the law relating to the charge of goods in custody. Those directions appear in the summing-up at p 8. 24 The alleged act relied upon by the Crown was the provision of a false receipt to Mr Newton to avoid a goods in custody case. 25 The appellant submits that because the explanation of the law in relation to the offence of goods in custody was so closely related to the factual issues to be determined by them that the jury may have considered that the same principles applied to the offence the subject of the charge. Thus it was said that his Honour was required to make clear that those directions to the jury in relation to the offence of goods in custody dealt with entirely different principles governing the onus and standard of proof and had no application to the instant case, and further or alternatively, Mr Nicholson submitted in this case that no directions were required to avoid the jury being mislead or confused as to the onus or standard of proof in respect of the particular charge, the subject of the trial. He submitted that further directions in the summing-up at p 18 potentially added to the confusion. 26 The submission is thus put that the return of a guilty verdict may be explained by the jury having been mislead or confused as to the onus and standard of proof and that the summing-up at pp 8 and 18 may have affected the jury's verdict, notwithstanding other directions given by his Honour in relation to the onus and standard of proof. It is appropriate, as I raised it with Mr Nicholson this morning, to note that his predecessor at the trial did not think there was any such confusion or chance of such confusion as submitted and did not seek directions in relation to such. 27 I have carefully read the summing-up. His Honour gave clear and specific directions as to the onus of proof, at pp 10 and 11 of the summing-up. Page 11 specifically referred to the Crown having to prove each and everyone of the ingredients or elements of the offence beyond reasonable doubt. A reading of the whole of the summing-up does not suggest that the jury was or could have been misled or confused in the way urged by the appellant. 28 Indeed, if I may say so, his Honour gave further very clear and specific directions also at pp 19 and 20. The complaints that have been made by Mr Nicholson QC must be read in the context of general and specific directions that were given by his Honour from time to time in the summing-up. Indeed, his Honour very clearly told the jury as to the matter of onus and who carried it. At p 25, his Honour just before the jury retired directed the jury that "What the Crown must prove beyond reasonable doubt is that the accused knew that it was a document relating to a non-existent purchase in 1993". 29 This passage makes it abundantly clear the jury could not have possibly been confused in relation to the onus of proof. The first ground of the appeal should be rejected. Ground 2 His Honour erred in failing to give directions as to the appellant's right of silence. 30 On two occasions during the evidence it was indicated by Mr Newton that the appellant had been asked to take part in a recorded interview and that he had declined to do so on legal advice. However, the point immediately to be made the references to the appellant declining to take part in a video recorded interview arose in the course of cross-examination. The evidence was not led by the Crown containing the two particular matters the subject of the complaints. 31 As to the first occasion two things can be immediately said. It would have been apparent to the jury that the occasion upon which the appellant declined to take part in an interview related to the investigation of the goods in custody charge - not the subject of the present proceedings. Second, defence counsel at the trial, was quick to respond to Mr Newton's answer in which he said to defence counsel that "We asked him and he declined on the advice of his solicitor" by a follow up question that it was the appellant's right to decline an interview, a matter which drew a further answer by Mr Newton "That's exactly right, yes". 32 The jury would have known the declining to be interviewed was on legal advice. The point had been made and emphasised by cross-examining counsel who had opened the subject up and he too in relation to this matter sought no directions that Mr Nicholson submits should have been given. 33 The second occasion in which the matter arose followed a line of further cross-examination of Newton by trial counsel appearing on behalf of the appellant. The line of questioning concerned whether the appellant in the presence of his solicitor, having given the receipts including the Beaver Creek receipt, was asked "one question about where it came from". Newton was asked questions in cross-examination including a question that there was nothing to prevent him from asking questions about the receipt given the fact that he had the protection of his solicitor being present. In the course of questioning on the matter an answer was given including in part that the appellant had been asked to take part in a recorded interview in relation to the matter and that he had obtained some legal advice and declined to do so on that advice. The answer, I might add, was also followed by further questions. 34 It seems to me that the answers that emerged on the two occasions in question were elicited inadvertently by the cross-examiner. Trial counsel on the spot, asked for no directions to rectify any possible misunderstanding that might arise from inadvertent answers. Indeed, on the second occasion it might have been thought that a right to silence direction would or could have diminished the effectiveness aimed at establishing that the appellant was deprived of the opportunity to inform Mr Newton that the receipt was only a duplicate receipt because Newton never asked him this question. There was thus a forensic advantage in the appellant's counsel not asking his Honour for a direction. Next, once again it is clear in respect of the second occasion that the appellant's declining to take part in a recorded interview was on legal advice and it was apparent that the appellant was prepared to talk to the police at the time the golf bag was seized at his home. 35 The decision of Regina v Reeves (1992) 29 NSWLR 109 is distinguishable on the facts. In the circumstances of this case there is no miscarriage of justice and Rule 4 should be applied. Ground 3 The appellant submits that His Honour erred in failing to direct the jury adequately in relation to their use of circumstantial evidence. 36 The appellant submits that the direction was not adequate since an indispensable link in the chain of which there had to be proof was that the appellant had in fact not purchased the golf bag as he had claimed. 37 His Honour in my view clearly directed the jury in terms that accorded with what the appellant in his submissions complained of being missing. See the direction given by his Honour at p 17 of the summing-up and particularly at 17.9. 38 His Honour informed the jury they had to be satisfied beyond reasonable doubt that the appellant had not, in fact, purchased the golf bag as he said. To this passage I would again add a reference to his Honour's further directions (at the behest of the appellant's counsel) at p 25 relating to the Crown proving beyond reasonable doubt that the Crown knew it was a document relating to a non existent purchase in 1993. 39 In my view this ground too should be rejected. Ground 4 Is articulated in the terms the verdict is unsafe and unsatisfactory. 40 It is submitted that the verdict is unsafe and unsatisfactory in the sense that, upon a consideration of the whole of the evidence it was not open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty: See M v The Queen (1994) 181 CLR 487. Further, or alternatively, it was submitted in the written submissions that the verdict was unsafe and unsatisfactory by reason of the matters raised in grounds one, two and three. 41 Before us the ground was articulated in the language of s 6 of the Criminal Appeal Act in terms that the verdict could not be supported having regard to the evidence. This was stated in recognition that the ground unsafe and unsatisfactory is not as such a separate ground of appeal acknowledged in terms of s 6 by the legislative scheme. Strictly speaking, the ground of appeal is a miscarriage of justice or other terminology in accordance with s 6, with an appropriate degree of particularity required in any heading. In considering the provisions of s 6 in a case of this nature the Court embarks upon a substantial analysis of the matter in terms of the approach of the High Court in M supra and Jones v The Queen (1997) 72 ALJR 78. 42 In the written submissions twelve matters have been identified in particular. I have considered them and I am bound to say an independent assessment of the evidence, its quality and nature does not cause me to entertain a doubt in the sense it is articulated in M nor do I consider the verdict cannot be supported having regard to the evidence, in terms of the language of s 6 of the Criminal Appeal Act. 43 In my opinion this ground has not been made good. The case was also one where the jury was in the best position to assess the witnesses and in particular of seeing and hearing the appellant and evaluating his assertions about the golf bag. 44 In my view having regard to all of the surrounding circumstances and all of the evidence the jury were entitled to reject the appellant's version and convict him. Accordingly, in my view this ground should be rejected. For all of these reasons I would propose an order that the appeal against conviction be dismissed. 45 GROVE J: I agree with Abadee J. 46 BARR J: I agree with Abadee J. 47 GROVE J: The order of the court will be as proposed by Abadee J. ----------------- DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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